North Dakota judge overturns state's abortion ban

BISMARCK, N.D. (AP) — A state judge on Thursday struck down North Dakota's abortion ban, saying the state constitution creates a fundamental right to access abortion before a fetus is viable.

In his ruling, state District Judge Bruce Romanik also said the law violates the state constitution because it is too vague.

A judge's ruling would legalize abortion in North Dakota, but there are currently no clinics in the state that perform the procedure, and the Republican-dominated state government is expected to appeal the ruling.

The state's only abortion provider was Red River Women's Clinic in Fargo, but it moved a few miles to Moorhead, Minnesota, in 2022 after a U.S. Supreme Court ruling. overturned Roe v. Wade and allowed states to ban abortions. Director Tammy Kromenacker said there were no plans to reopen the North Dakota clinic, but Thursday's decision “gives us hope.”

“We believe the court heard our concerns and the concerns of North Dakota physicians about a law that we believe goes too far,” she said.

The offices of Republican Gov. Doug Burgum and Republican state Attorney General Drew Wrigley have not yet responded to the decision, though Wrigley's office said it would release a statement Thursday.

Romanik made a decision on the state's request dismiss 2022 lawsuit filed by the Red River Clinic. After the clinic moved, the state said the trial would not change anything. The judge canceled the trial, which was scheduled for August.

However, Romanik cited North Dakota's Constitution as guaranteeing “inalienable rights,” including “life and liberty.”

“The abortion laws at issue in this case violate a woman’s fundamental right to reproductive autonomy and are not intended solely to promote women’s health or protect unborn human life,” Romanik wrote in his 24-page ruling. “The law as currently drafted denies a woman her freedom and right to seek and find safety and happiness.”

Mitra Mehdizadeh, a staff attorney at the Center for Reproductive Rights, which supports abortion rights and challenges state bans, said the ruling “means it’s now much safer to get pregnant in North Dakota.” But she noted that it could take years for clinics to open.

“The devastating effects of abortion bans are felt long after they are lifted,” she said.

North Dakota elects both Supreme Court justices and circuit court judges, but the races are nonpartisan. Romanik was first elected as a judge in 2000 and has been re-elected every six years since, most recently in 2018. Before becoming a judge, he was an assistant state’s attorney in Burleigh County, where the state capital of Bismarck is located.

The judge acknowledged in his ruling that North Dakota courts have relied on federal court precedents on abortion issues in the past, but said those state precedents were “upended” by the U.S. Supreme Court's landmark abortion decision in 2022.

Romanik said he had “little or no idea” how the North Dakota Supreme Court would rule on the issue, and so his decision was the “best attempt” to “apply the law as it currently stands to the question presented” while protecting the fundamental rights of state residents.

“Pregnant women in North Dakota have a fundamental right to abortion before it is clear that they are viable, consistent with the enumerated and unenumerated interests provided by the North Dakota Constitution,” the judge wrote.

In many ways, Romanik's ruling echoes a 2019 Kansas Supreme Court ruling that declared abortion access a fundamental right under similar provisions of the state constitution, though the Kansas court did not limit its ruling to the period before the fetus becomes viable. Kansas voters have confirmed that position. at a statewide vote in August 2022.

Romanik concluded that the law is too vague because it does not set clear enough standards for determining whether exceptions apply, leaving doctors vulnerable to lawsuits because others disagree with their decisions.

In 2023, North Dakota's Republican-controlled Legislature revised state abortion laws that made abortions legal for pregnancies resulting from rape or incest, but only during the first six weeks of pregnancy. Under the revised law, abortions later in pregnancy are allowed only in special medical cases.

Soon after, several obstetricians, gynecologists and perinatologists joined the clinic. filed Amended complaint. The plaintiffs argued that the abortion ban violated the state constitution because it was unconstitutionally vague in its exemptions for physicians and that the health exception was too narrow.

Romanik acknowledged that when North Dakota became a state in 1889, its founders likely did not recognize the right to abortion under the state constitution, but added that “women were not viewed as full and equal citizens.”

The judge said that by studying history and tradition, he hopes people will learn that “there was a time when we were wrong and when women did not have a voice.”

“It need not go on forever, and the feelings of the past need not in themselves govern the present forever,” he wrote.

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